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Liabilities  of  the  Carrier 
for  Loss  of  Goods 


Modern  American  Law  Lecture 


Blackstone  Institute*   Chicago 


LIABILITIES  OF  THE  CARKIER 
FOR  LOSS  OF  GOODS 


BY 

BRUCE  WYMAN,  A.M.,  LL.B. 

OF  THE  BOSTON,  MASSACHUSETTS,  BAR; 
FORMER  PROFESSOR.  HARVARD  LAW  SCHOOL 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blackstone  Institute 


BLACKSTONE    INSTITUTE 
CHICAGO 

Copyright,  1916,  by  Blackstone  Institute 


BRUCE  WYMAN 


BRUCE  WYMAN 

Mr.  Wyman  needs  no  introduction  to  the  legal  pro- 
fession in  this  country.  Since  the  publication  of  his 
work  on  Public  Service  Corporations,  he  has  been  recog- 
nized generally  as  the  master  of  this  subject;  and  his 
experience  recently  in  handling  rate  cases  for  railroad 
systems  renders  him  particularly  well  qualified  to  write 
on  any  matter  connected  with  carriers.  He  thus  speaks 
in  respect  to  transportation  not  only  with  the  authority 
of  one  who  has  long  been  a  student  of  the  subject  in  the 
investigations  connected  with  his  work  as  a  professor 
and  writer*,  but  also  from  the  experience  of  one  who  has 
had,  as  a  lawyer  in  practice,  much  to  do  in  hundreds 
of  cases  with  various  phases  of  the  problems  which  he  is 
discussing. 

He  is  author  of  "Railroad  Rate  Regulation,"  "Public 
Service  Corporations,"  Administrative  Law,"  "Con- 
trol of  the  Market,"  "Restraint  of  Trade,"  "Mortgage 
Securities,"  "Public  Service  Cases,"  "Jurisdictional 
Limitations  Upon  Commission  Action,"  "A  Solution  of 
the  Trust  Problem,"  "State  Control  of  Public  Utilities;" 
"Monopolies,"  in  Cyclopaedia  of  Law  &  Procedure, 
"Equity,"  in  Encyclopaedia  of  Government  &  Law, 
' '  Public  Service  Companies, ' '  in  Modern  American  Law, 
' '  Unfair  Competition  by  Monopolistic  Corporations, ' '  in 
the  Annals  of  the  American  Academy ;  and  various  art- 
icles in  the  Harvard  Law  Review,  Yale  Law  Journal, 
Columbia  Law  Review,  and  the  Green  Bag. 

Mr.  Wyman  has  within  a  few  years  returned  to  his 
practice  at  the  Massachusetts  Bar,  to  which  he  is  now 
devoting  the  whole  of  his  attention,  having  previously 
confined  his  activities  as  an  attorney  at  law,  while  he  was 
for  ten  years  a  Professor  in  the  Harvard  Law  School, 
primarily  to  those  of  a  consulting  counsel  in  corporation 
matters.  In  the  course  of  his  career  he  has  not  only  had 
charge  of  many  courses  on  the  subjects  in  which  he  is 
known  as  an  expert  in  the  Law  School  of  Harvard  Uni- 
versity, the  Chicago  University  Law  School,  the  Depart- 
ment of  Economics  at  Harvard  and  the  Department  of 
Engineering  in  its  Scientific  School,  but  he  has  also  acted 
as  draftsman  of  a  Public  Service  Commission  Bill,  as 
investigator  for  the  Directors  of  the  Port  of  Boston,  as 
counsel  for  the  National  Civic  Federation,  and  as  counsel 
in  matters  for  and  against  several  railroad  systems  and 
many  other  public  service  corporations. 


LIABILITIES  OP  THE  CARRIER  FOR 
LOSS  OP  GOODS 

By 
BRUCE  WYMAN,  A.M.,  LL.B. 

THE  COMMON  GABBIER  AS  A  BAILEE 

The  responsibility  of  the  carrier  for  failure  to  get 
through  to  the  consignee  the  goods  which  have  been 
intrusted  to  him  in  as  good  shape  as  they  were  in 
when  first  delivered  to  him  by  the  consignor  has 
traditionally  been  treated  under  the  topic  of  Car- 
riers along  with  the  subject  of  Bailments.  Abstractly 
carriage  is  simply  one  form  of  Bailment,  as  the  car- 
rier takes  possession  of  the  goods  from  the  shipper 
under  an  arrangement  to  transport  the  goods  in 
accordance  with  the  responsibilities  imposed  by  law. 
To  be  a  carrier  one  must  not  merely  take  possession 
but  must  also  undertake  transportation.  If  the 
goods  are  simply  to  be  held  at  a  wharf  in  storage 
until  a  ship  arrives,  this  is  warehousing,  not  car- 
riage ;  for  although  possession  is  taken,  no  transpor- 
tation is  involved.  On  the  other  hand,  where  goods 
are  moved  without  possession  being  taken  there  is 
no  carriage,  as  where  a  through  railroad  train  is 
hauled  across  a  bridge  by  a  switching  engine  belong- 
ing to  the  bridge  company.  A  carrier  as  thus  de- 
fined is,  however,  simply  a  bailee  with  the  responsi- 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

bilities  pertaining  to  bailment  generally — no  more, 
no  less.  It  is  only  when  he  is  found  to  be  a  common 
carrier  that  his  liabilities  for  losses  at  law  become 
abnormal — making  him  practically  an  insurer. 

A  common  carrier  is  one  who  undertakes  to  carry 
for  all  who  seek  his  services,  as  an  expressman  does 
who  takes  his  stand  at  a  railroad  station  to  solicit 
business.  On  the  other  hand,  one  who  loads  his  ship 
for  a  special  voyage  for  a  particular  charterer  is  not 
acting  as  a  common  carrier.  Only  those  who  make 
a  profession  of  being  carriers  for  hire  are  held  to 
be  doing  business  upon  a  public  basis  as  common 
carriers.  But  those  who  engage  in  the  business  casu- 
ally or  who  take  goods  as  a  favor  gratuitously  are 
not  rated  as  common  carriers.  These  tests  go  back 
to  the  time  when  those  who  undertook  services  vital 
to  the  public  were  held  to  responsibility  beyond  that 
resting  upon  people  generally.  And  carriage  thus  con- 
•ducted  has  throughout  the  history  of  our  law  been 
held  to  be  peculiarly  affected  with  a  public  interest. 

COMMON  CARRIERS  MADE  INSURERS 

Thus  in  our  earliest  law  reports  we  find  the  carrier 
who  regularly  took  goods  of  others  to  the  market 
town  held  liable  for  their  loss,  although  he  was  over- 
powered by  highwaymen.  He  had  assumed  to  carry 
them  through;  and  according  to  mediaeval  notions 
his  story,  however  much  credited,  constituted  no 
excuse  at  law  for  his  failure  in  his  undertaking. 
There  was  nothing  shocking  to  the  mediaeval  mind 
in  holding  a  man  absolutely  liable  for  his  failure  to 
protect  the  goods  which  he  had  undertaken  to  dc- 


LIABILITIES  OF  THE  CARRIER  7 

liver.  It  is  doubtful,  however,  whether  the  doctrines 
then  current  would  have  gone  to  the  extent  of  hold- 
ing him  liable  for  loss  beyond  the  scope  of  the  under- 
taking, such  as  accidental  fire,  as  he  is  in  modern 
times.  Indeed,  it  remained  for  Lord  Mansfield  in 
the  latter  part  of  the  eighteenth  century  to  utter  the 
portentous  words — "A  Carrier  is  in  the  nature  of 


an  insurer/1 


As  the  law  has  stood  for  some  time,  therefore,  the 
carrier  of  goods  is  absolutely  liable  for  their  loss  or 
for  injury  to  them.  This  is  applied  strictly  to  the 
case  of  the  common  carrier  of  goods;  but  it  is  not 
extended  to  other  services,  no  matter  how  similar  to 
carriage.  The  common  carrier  of  goods  is  thus  liable 
as  an  insurer,  whether  the  loss  or  injury  is  his 
fault  or  he  contributes  in  any  way  to  the  loss.  A 
shipmaster  has  always  been  held  liable  for  an  acci- 
dental loss  of  his  vessel  which  has  been  cast  awaj% 
although  he  could  not  be  said  to  be  in  any  way  to 
blame.  It  should  be  said,  however,  that  there  are 
certain  exceptions  to  this  absolute  liability  in  the 
law  as  it  stands,  most  of  which  can  be  traced  back 
to  an  early  time  when  they  had  a  place  in  the  general 
scheme.  These  are  worth  listing  before  the  discus- 
sion of  them  is  begun:  (1)  act  of  God,  (2)  seizure 
by  public  enemies,  (3)  vice  of  the  goods  and  (4) 
interference  of  a  party  in  interest. 

When  Possession  Is  Taken 

The  question  is  often  raised  as  to  whether  the  car- 
rier in  a  case  under  consideration  is  under  any  re- 
sponsibility whatsoever  as  such.  Clearly,  until  the 


8  MODERN  AMERICAN  LAW  LECTURE 

goods  in  question  come  to  his  possession  he  is  as  yet 
no  carrier.  Thus  if  the  shipper  is  getting  the  goods 
together  for  shipment  at  a  private  siding  the  rail- 
road has  no  responsibilities  in  relation  to  them  at 
that  stage.  Even  if  the  carrier  is  properly  offered 
the  goods,  and  wrongfully  refuses  to  take  them,  his 
liability  is  not  that  of  the  bailee  of  goods,  but  of  a 
carrier  defaulting  in  his  obligation  to  receive.  So 
if  after  such  a  refusal  the  owner  leaves  the  goods 
exposed  to  theft,  he  cannot  hold  the  carrier  for  their 
loss.  You  do  not  show  the  bailment  which  is  essen- 
tial to  the  situation  in  carriage  unless  you  can  prove 
a  taking  of  possession  from  the  shipper  by  the  car- 
rier. And  unless  carriage  is  going  on,  no  question 
of  the  liabilities  for  losses  pertaining  to  that  situa- 
tion can  arise. 

The  delivery  of  goods  to  the  carrier  for  shipment 
may  be  actual  or  constructive,  but  there  must  be  a 
delivery  and  acceptance  of  the  goods.  Thus  delivery 
to  an  expressman  out  collecting  is  delivery  to  the 
company,  since  the  goods  have  actually  been  received 
in  due  course  of  business.  On  the  other  hand,  even 
the  deposit  of  goods  at  a  railroad  station  upon  a 
platform  provided  to  receive  them,  though  they  are 
so  deposited  for  immediate  shipment  ready  to  be 
loaded  upon  the  freight  train  when  it  arrives,  is  not, 
in  the  absence  of  special  custom,  enough  to  render 
the  carrier  liable.  But  where  goods  are  taken  out 
of  the  vehicle  in  which  they  are  brought  to  the  con- 
veyance of  the  carrier  by  a  crane  operated  by  the 
carrier,  the  carrier's  responsibility  is  held  to  begin 
as  soon  as  the  goods  are  attached  to  the  tackling. 


LIABILITIES  OF  THE  CARRIER  9 

SPECIAL  ARRANGEMENTS  AFFECTING  CARRIAGE 
Where  the  customer  is  dealing  with  an  employee, 
it  is  sometimes  difficult  to  say  whether  the  servant 
is  undertaking  public  service  on  behalf  of  his  mas- 
ter, or  whether  he  is  agreeing  to  a  private  service 
in  his  personal  capacity.  Where  a  parcel  was  given 
to  the  coachman  who  undertook  to  deliver  it  in  town, 
it  was  held  that  such  carriage  was  a  private  matter, 
undertaken  by  the  servant  personally.  But  a  person 
leaving  a  package  upon  the  front  platform  of  a  street 
car,  in  sight  of  the  conductor,  should  not  expect  the 
company  to  be  liable,  unless  there  has  been  a  hold- 
ing out  to  take  for  an  additional  price  miscellaneous 
parcels  which  passengers  bring  with  them. 

If  the  owner  of  goods  goes  along  with  them  and 
retains  possession  of  them,  the  person  who  furnishes 
the  vehicle  is  not  a  carrier,  since  he  is  not  a  bailee. 
In  the  case  of  a  ferry,  for  example,  the  fact  that 
the  owner  goes  along  with  the  goods  and  often  re- 
tains the  entire  charge  and  management  of  them  (as 
for  instance  where  he  drives  a  horse  on  the  ferry- 
boat and  manages  him  while  on  the  boat),  prevents 
the  relation  of  carriage.  The  case  of  the  circus  train 
is  also  peculiar  in  that  the  keeping  of  the  wild  beasts 
obviously  remains  with  the  owners  of  the  circus,  who 
make  a  special  contract  for  the  haulage  of  their 
train;  and  the  company  is  therefore  not  liable  as  a 
common  carrier  in  case  of  an  accident. 

ACT  OF  GOD  AS  AN  EXCUSE 

Prom  time  immemorial  a  loss  caused  solely  by  the 
act  of  God  has  been  excused,  but  what  constitutes 


10  MODERN  AMERICAN  LAW  LECTURE 

an  act  of  God  has  never  been  defined  with  exactness. 
Indeed,  it  is  evident  that  the  extent  of  this  excuse 
has  varied  in  the  history  of  the  law,  having  been 
formerly,  very  probably,  more  extensive  than  it  is 
at  present.  The  awful  convulsions  of  nature  are 
plainly  acts  of  God.  Losses  caused  altogether  by 
earthquakes,  eruptions,  landslides,  and  tidal  waves, 
to  select  four  instances,  are  plainly  excused.  Vio- 
lent storms  are  also  plainly  acts  of  God,  such  as  tor- 
nadoes, whirlwinds  or  cloud-bursts,  and  extraordi- 
nary floods  or  the  bursting  of  dams.  And  snowstorms 
or  blizzards  furnish  other  examples,  with  snow 
blockades  and  snow  slides  as  their  result.  A  sudden 
change  in  temperature,  such  as  an  unexpected  frost, 
or  an  unforeseen  period  of  extreme  cold,  constitutes 
an  act  of  God,  as  well  as  warm  weather  and  extreme 
heat.  It  should  be  added  that  the  ceasing  of  the 
natural  forces  which  are  unusually  manifesting  them- 
selves constitutes  an  act  of  God.  Thus  a  sudden 
dying  of  the  wind  is  as  much  an  act  of  God  as  an 
unexpected  squall;  and  an  unusual  drought  is  as 
much  an  act  of  God  as  a  torrential  rain. 

From  the  earliest  times  seizure  by  the  King's  ene- 
mies has  also  been  an  excuse  in  public  service.  As  a 
foundation  for  the  excuse,  a  state  of  war  must  exist 
between  the  community  to  which  the  carrier  belongs 
and  the  country  whose  forces  have  made  the  seizure. 
It  makes  no  difference  whether  the  foreign  govern- 
ment waging  the  war  is  de  jure  or  de  facto;  but  it 
must  be  sufficiently  organized  to  be  regarded  as  a 
belligerent  party  in  a  war  actually  begun.  The 
American  cases  chiefly  relate  to  the  situation  at  the 


LIABILITIES  OF  THE  CARRIER  11 

time  of  our  civil  war.  It  was  finally  generally  agreed 
that  the  Confederate  government  was  so  far  de  facto 
as  not  only  to  make  its  forces  public  enemies  to 
Federal  carriers,  but  also  to  make  the  Federal  forces 
enemies  to  Confederate  carriers.  On  the  other  hand, 
damage  caused  by  roving  marauders  does  not  come 
within  the  excuse.  And  if  a  carrier  be  robbed  by  a 
hundred  men  he  is  never  the  more  excused. 

VICE  OF  THE  GOODS  THEMSELVES 

Moreover,  there  is  an  established  excuse  if  the  loss 
happens  by  deterioration  or  disintegration  of  the 
goods  in  transit,  whether  it  is  due  to  inherent  char- 
acteristics or  precipitated  by  external  factors.  If 
for  example  the  loss  happens  by  a  freezing  in  winter 
or  if  by  melting  in  summer  there  is  an  excuse.  Like- 
wise a  loss  caused  by  the  fermentation  of  the  mo- 
lasses being  carried,  or  by  the  decay  of  the  fruit  in 
transit,  will  be  excused.  In  any  case,  the  deteriora- 
tion of  the  goods  must  be  the  result  of  natural  causes. 
But  it  is  not  necessary  to  show  that  the  loss  would 
have  occurred  if  the  goods  had  not  been  moved. 
This  excuse  of  the  vice  of  the  goods  finds  its  chief 
scope  in  the  law  relating  to  the  carriage  of  animals. 
If,  notwithstanding  due  care  of  them,  they  injure 
themselves  or  die  by  accident,  the  carrier  is  not  held 
liable. 

The  patron  should  not  recover  when  the  loss  can 
be  attributed  to  his  own  action.  Thus  if  wrong  di- 
rections for  the  performance  of  service  are  given, 
the  patron  cannot  complain  of  the  failure  caused 
thereby.  And  if  the  patron  conceals  the  true  char- 


12  MODERN  AMERICAN  LAW  LECTURE 

acter  of  the  service  asked,  he  cannot  complain  of  the 
loss  caused  thereby.  Furthermore,  if  the  patron  in- 
terferes with  the  performance  of  the  service,  he  can- 
not complain  of  any  loss  to  which  his  action  con- 
tributes. Thus  where  the  shipper  put  hay  into  a 
stock  car  in  violation  of  regulations  of  the  company 
forbidding  the  putting  of  combustibles  into  the  car, 
it  was  said  that  the  carrier  should  not  be  held  liable 
for  a  subsequent  loss  by  fire.  Similarly  where  a 
servant  of  the  shipper  accompanying  stock  took  a 
lantern  into  the  car  which  set  the  car  on  fire,  it  was 
held  that  the  railroad  was  not  liable  whether  the 
lantern  was  handled  negligently  or  not. 

NEGLIGENCE  CONTRIBUTING  TO  THE  CATASTROPHE 

It  should  be  noted  that  where  human  activity  is  a 
factor  in  the  loss  the  carrier  is  liable  although  in 
no  wise  to  blame.  Thus  in  the  case  of  the  Chicago 
fire,  started  by  negligence  in  a  remote  part  of  the 
city,  the  railroads  were  held  liable  for  burning  of 
goods  in  the  freight  yards.  But  in  the  Johnstown 
flood,  caused  by  the  bursting  of  a  reservoir  after 
heavy  rains,  the  railroads  were  held  not  liable.  An- 
other comparison  of  two  other  actual  cases  may  make 
this  plainer.  Where  a  vessel  by  failure  of  the  wind 
was  left  helpless  so  that  it  drifted  upon  the  rocks, 
notwithstanding  all  efforts  of  its  master,  the  loss 
was  held  one  for  which  the  carrier  was  not  liable, 
as  it  was  caused  solely  by  act  of  God.  On  the  other 
hand  where  a  ship  while  being  steered  in  its  usual 
course  ran  upon  the  wreck  of  another  ship  which  had 
a  few  hours  before  been  sunk  in  the  channel  by  a 


LIABILITIES  OF  THE  CARRIER  13 

sudden  squall,  it  was  held  that,  as  the  act  of  man 
contributed  to  the  catastrophe,  the  carrier  was  liable 
for  the  loss,  although  in  no  wise  to  blame. 

Moreover,  even  if  the  damage  is  apparently  due 
exclusively  to  act  of  God  or  other  exceptional  cause, 
nevertheless  if  the  carrier  could  have  foreseen  the 
catastrophe  in  time  to  have  prevented  it,  or  could 
have  avoided  the  results  of  it  and  negligently  failed 
to  do  so,  he  will  be  liable.  This  is  brought  out  in  two 
well  known  United  States  Supreme  Court  cases.  In 
one  of  them  it  was  pointed  out  that  if  the  carrier 
chooses  the  route  which  would  very  probably  expose 
the  goods  to  capture  by  the  enemy,  it  will  be  liable 
for  their  capture.  In  the  other  it  was  pointed  out 
that  unless  the  carrier  failed  to  exercise  whatever 
care  was  practicable  to  remove  the  goods  from  a 
rising  flood,  it  would  not  be  held  liable.  Likewise, 
where  an  animal  shows  signs  of  sickness  to  such  a 
degree  as  to  endanger  its  life,  the  carrier  should,  if 
possible,  take  steps  to  relieve  it.  So,  where  the  ship- 
per has  sent  goods  obviously  improperly  packed,  it 
was  held  that  the  carrier  should  see  that  they  are 
better  secured. 

PERSISTING  DUTY  TO  SAFEGUARD 

Where  the  injury  may  be  repaired  wholly  or  par- 
tially at  the  place  of  accident,  and  where  such  a 
course  is  peculiarly  necessary  to  prevent  further  de- 
terioration, the  elements  of  this  duty  are  obvious. 
The  carrier  must  do  what  is  reasonable  to  prevent 
deterioration  of  the  goods  or  damage  to  them  as  a 
result  of  an  accident.  So  if  a  cargo  has  been  wet  it 


14  MODERN  AMERICAN  LAW  LECTURE 

should  be  dried  at  an  intermediate  port,  if  that  is 
practicable.  And  perishable  provisions  should  be 
iced  if  the  departure  of  the  carrier  has  been  delayed. 
And  wrecked  cars  should  be  guarded  if  that  is  pos- 
sible. Of  course  in  these  as  in  other  cases,  if  the  law 
throws  this  rather  extraordinary  liability  of  care  in 
emergencies  on  the  companies,  they  may  recoup 
themselves  by  a  proper  charge.  And  clearly  special 
instructions  by  the  shipper  not  to  take  precautions 
will  excuse  the  carrier  from  so  doing  in  the  absence 
of  any  unexpected  delay. 

Unusual  circumstances  may  call  for  the  stopping 
of  performance.  Thus  when  a  horse  has  been  made 
sick  by  being  frightened  by  the  motion  of  the  train, 
the  car  containing  it  should  be  sidetracked  upon  re- 
quest where  this  is  practicable.  In  a  more  extreme 
case  it  was  held  lately  that,  where  a  woman  traveling 
was  taken  with  childbirth  pains,  it  was  the  duty  of 
the  conductor  to  accede  to  her  request  to  stop  the 
train  at  a  town  where  there  was  a  hospital,  although 
the  train  was  not  scheduled  to  stop  there.  To  put 
less  obvious  cases,  it  has  been  held  that  where  the 
transportation  of  peaches  was  stopped  at  a  bridge 
which  had  been  swept  away,  and  the  delay  promised 
to  be  so  long  that  in  the  weather  conditions  then 
prevailing  the  fruit  was  sure  to  rot  before  it  could 
reach  the  market,  the  carrier  had  the  extraordinary 
right,  if  indeed  not  the  duty,  to  sell  the  fruit  on 
the  spot.  This  extraordinary  law  is  for  extreme 
cases;  a  conductor  is  not  obliged  to  stop  a  train  to 
enable  a  passenger  to  recover  a  hand  bag  lost  out  a 
window. 


LIABILITIES  OF  THE  CARRIER  15 

DEFAULT  IN  THE  CARRIAGE  UNDERTAKEN 

Whatever  the  bailment  involves,  whether  it  be 
transportation  or  anything  else,  must  be  diligently 
performed.  Of  course  there  are  many  unexpected 
obstacles  which  will  excuse  delay  in  performing  ser- 
vice. But  even  if  the  delay  is  excused,  the  duty 
remains  to  complete  performance  as  best  it  now  may 
be.  Indeed,  quite  extraordinary  steps  are  often  re- 
quired by  the  law  for  the  protection  of  the  interests 
of  the  patron  in  such  an  emergency.  Moreover,  by 
the  general  rule  bailees  are  held  strictly  account- 
able for  any  deviation  from  their  undertaking. 
What  they  have  assumed  to  do  for  their  patrons  they 
must  do  in  the  very  way  that  they  have  undertaken 
to  do;  and  if  they  fail  to  perform  in  any  way  what 
they  have  undertaken,  they  are  held  absolutely  liable 
for  the  time  being.  But  here  again  extraordinary 
events  may  intervene ;  and  in  the  unexpected  emer- 
gency not  only  are  they  excused  for  making  a  devia- 
tion, but  in  many  instances  it  is  their  duty  to  com- 
plete performance  in  some  other  way. 

Although  no  certain  time  be  promised  for  com- 
pletion, a  reasonable  time  will  be  implied.  Some- 
times this  default  is  so  obvious  as  to  speak  for  itself. 
Thus  the  consumption  of  seventeen  days  for  the  car- 
riage of  goods  usually  taking  but  three  days  is  cer- 
tainly prima  facie  negligent.  And,  of  course,  a  de- 
lay of  seventy  days  in  completing  the  carriage  of 
goods,  where  usually  but  a  few  days  are  taken,  could 
only  be  explained  away  in  the  most  extraordinary 
case.  Where  a  cattle  train  was  stopped  for  ten  hours 
upon  a  journey  covering  in  all  two  hundred  miles, 


16  MODERN  AMERICAN  LAW  LECTURE 

it  was  held  to  be  an  unreasonable  delay  on  the  face  of 
it.  So,  where  the  usual  course  of  transporting 
freight  was  one  day,  the  taking  of  two  days  was  held 
unreasonable,  when  the  market  for  perishable  goods 
was  lost  thereby.  Granting  the  negligence,  however, 
the  liabilities  for  consequential  damages  where  the 
goods  themselves  ultimately  arrive  in  unimpaired 
condition  remains  to  be  considered  more  fully 
later  on. 

DEVIATION  FROM  THE  ROUTE 

In  the  absence  of  express  agreement,  the  carrier 
is  bound  to  transport  the  goods  by  the  ordinary  route 
and  by  the  usual  means  of  conveyance.  The  under- 
taking of  a  common  carrier,  in  the  absence  of  any 
special  contract,  is  to  transport  the  property  to  the 
place  of  destination  by  the  most  usual,  safe,  direct  and 
expeditious  route.  Failing  in  any  of  these,  unless 
prevented  by  inevitable  accident,  he  is  held  abso- 
lutely liable  for  the  loss.  Thus,  deviation  may  be 
defined  in  general  terms  as  any  substantial  departure 
from  the  arrangement  made  between  the  shipper  and 
the  carrier.  Mere  delay,  however,  is  not  a  deviation, 
unless  it  amounts  to  an  abandonment  of  the  contract 
or  is  so  gross  as  to  indicate  departure  from  the  un- 
dertaking. Deviation  is  any  dealing  with  the  prop- 
erty taken  in  some  way  not  authorized  by  the  patron, 
but  such  intermeddling  is  not  held  to  be  the  tort  of 
conversion  although  many  of  the  consequences  of 
a  trover  flow  therefrom  for  the  time  being.  All  this 
is  governed  by  the  same  principles  as  where  in  a 
bailment  of  a  horse  to  drive  from  A  to  B,  the  hirer 


LIABILITIES  OF  THE  CARRIER  17 

drives  to  C;  for  in  such  a  case  the  bailor  could  hold 
the  bailee  liable  if  the  horse  were  killed  by  lightning. 
Carriers  receiving  property  for  transportation 
plainly  make  a  deviation  from  their  undertaking  by 
forwarding  the  goods  by  a  route  different  from  their 
undertaking  or  by  forwarding  property  to  a  station 
other  than  that  agreed  upon.  Indeed,  it  is  equally 
a  deviation  to  forward  by  rail  if  water  is  specified, 
or  by  water  if  rail  is  specified.  It  amounts  to  a  devi- 
ation to  forward  the  goods  to  the  specified  destina- 
tion by  an  indirect  route,  the  question  whether  the 
indirect  route  is  outside  the  contemplation  of  the 
parties  being  a  question  for  the  jury.  Where  there 
is  a  fair  choice  of  routes  it  will  be  assumed  that  it 
is  left  to  carrier  to  choose  according  to  ordinary 
course  of  business;  but  if  the  carrier  chooses  a  more 
dangerous  route  he  is  liable.  For  a  ship  to  call  at  a 
port  not  announced  as  a  port  of  call  would  be  a 
deviation;  but  if  driven  to  take  shelter  there  by 
stress  of  weather  the  case  would  be  different. 

JUSTIFICATION  FOR  FAILURE  TO  TRANSPORT 

It  sometimes  happens  that  there  is  a  mass  of  busi- 
ness which  cannot  be  handled  within  reasonable  time. 
A  wholly  unexpected  press  of  business  is  held  an 
excuse  for  refusing  to  undertake  further  service, 
provided  that  the  company  has  exercised  due  dili- 
gence in  providing  adequate  facilities.  Following 
these  cases,  the  law  for  this  situation  is  that  where 
sufficient  equipment  has  been  provided  to  meet  ex- 
pected business,  and  by  reason  of  unexpected  de- 
mand prompt  service  cannot  be  given,  there  is  an 


18  MODERN  AMERICAN  LAW  LECTURE 

excuse  for  such  unavoidable  delay.  This,  however, 
is  limited  to  cases  where,  when  the  business  was  ac- 
cepted, it  was  not  known  that  there  was  impending 
this  extraordinary  pressure  of  business.  But  pres- 
sure of  business  resulting  from  lack  of  proper  means 
of  transportation  cannot  be  an  excuse  for  delay. 
Where  this  unexpected  press  of  business  will  ex- 
cuse the  railroad  for  failure  to  move  promptly  all 
freight  it  has  taken,  it  should  usually  normally  move 
the  freight  on  hand  in  the  order  of  its  receipt.  But 
in  extraordinary  circumstances,  it  may  postpone  a 
later  shipment  for  an  earlier,  as  perishable  freight 
for  non-perishable,  regardless  of  the  order  of  accept- 
ance. 

The  case  of  strikes  presents  a  difficult  situation, 
which  has  not  yet  been  satisfactorily  worked  out. 
In  so  far  as  the  operations  of  the  company  are  pre- 
vented by  the  violent  action  of  the  strikers  after 
leaving  the  service,  or  the  violence  of  sympathizers, 
with  which  the  public  authorities  have  not  been  able 
to  cope,  delays  are  excusable  until  peaceful  condi- 
tions are  restored.  Where,  however,  there  is  delay 
or  damage  caused  by  the  employees  quitting  work,  the 
mere  fact  that  the  company  has  not  sufficient  men  to 
perform  the  services  at  its  disposal,  is  according  to 
the  authorities  apparently  no  excuse.  But  it  would 
seem  that  if  the  company  is  not  lacking  in  diligence 
in  meeting  the  situation,  it  should  not  be  held  liable. 
It  might  be  added  that,  since  strikers  however  vio- 
lent are  not  enemies,  the  carrier  is  liable  if  they 
destroy  the  goods.  Thus,  as  the  law  stands,  their 
interference  is  a  defense  for  not  getting  the  goods 


LIABILITIES  OF  THE  CARRIER  19 

through  promptly;  but  it  is  no  excuse  for  not  pro- 
ducing the  goods  ultimately. 

LIABILITY  FOR  CONSEQUENTIAL  DAMAGES 

The  special  liability  imposed  by  the  law  upon  the 
carrier  of  goods  is  altogether  exceptional  in  modern 
law.  Probably  it  is  due  to  a  rather  late  extension 
of  the  rather  stringent  ancient  rule;  and  doubtless 
in  early  times  a  practically  absolute  liability  for 
breach  of  the  undertaking  was  felt  to  be  necessary 
in  order  to  prevent  connivance  with  robbers,  with 
which  the  country  was  infested.  Then,  too,  there 
was  nothing  shocking  to  the  mediaeval  mind  in  abso- 
lute liability  as  such,  where  it  was  felt  that  a  de- 
sirable end  could  be  reached  by  the  process.  For- 
tunately, these  notions  did  not  persist  in  regard  to 
the  modern  action  for  damages  consequent  upon  neg- 
ligence, which  is  altogether  governed  by  the  modern 
view  that  no  one  should  be  held  liable  for  not  doing 
more  than  his  best.  Indeed,  the  view  of  our  time  is 
that,  even  where  a  person  is  shown  to  be  negligent, 
he  is  not  thereby  made  responsible  for  damage  con- 
current with  his  negligence,  unless  the  loss  is  in  a 
true  sense  caused  thereby. 

It  may  also  be  pointed  out  briefly  that  when  the 
negb'gence  of  the  carrier  is  a  contributing  cause  in 
the  final  loss,  the  carrier  will  be  held  liable  therefor. 
Thus  if  a  shipmaster  sets  forth  in  an  unseaworthy 
vessel  which  is  lost  in  a  storm  which  a  seaworthy 
vessel  would  have  survived,  the  carrier  was  properly 
enough  held  liable.  In  this  case,  as  in  many  others, 
the  negligence  may  truly  be  said  to  be  a  cause  con- 


20  MODERN  AMERICAN  LAW  LECTURE 

tributing  to  the  final  catastrophe.  So,  where  a  car- 
rier left  his  cart  for  several  hours  at  a  ford  in  mid- 
stream, and  the  water  rose  and  injured  the  goods 
while  he  was  gone,  he  was  properly  enough  held 
liable  for  such  natural  consequences  of  his  negli- 
gence. And,  indeed,  wherever  the  loss  is  plainly 
proximate  to  the  default  the  liability  of  the  carrier 
therefor  is  beyond  question. 

ACCIDENTS  HAPPENING  DURING  DELAYS 

Where  the  loss  is  merely  concurrent  with  a  delay 
there  is  a  noteworthy  conflict  in  the  authorities;  it 
would  hardly  seem,  however,  that  such  a  coincidence 
in  itself  establishes  a  cause.  In  one  leading  case 
goods  delayed  in  transit  were  destroyed  by  an  acci- 
dental fire  at  an  intermediate  station;  and  it  was 
held  that  the  carrier  was  not  liable.  On  the  other 
hand,  where  goods  while  delayed  en  route  were  de- 
stroyed by  a  flood,  it  was  held  that  the  carrier  was 
liable.  It  may  be  admitted  that  if  the  delay  ma- 
terially increased  the  risk  the  carrier  should  be  Liable 
as  where  fruit  was  frozen  after  having  been  delayed 
in  transit  with  winter  coming  on.  But  it  would  seem 
that — in  the  usual  case — delay  is  about  as  likely  to 
cause  goods  to  escape  a  conflagration  as  not.  It  is 
therefore  urged  that  such  losses  are  not  the  result 
of  the  fault  although  the  negligence  be  admitted. 
The  authorities,  however,  on  this  point  are  almost 
equally  divided. 

In  the  case  of  deviation,  however,  there  is  such  a 
departure  from  the  fundamental  obligations  per- 
taining to  the  bailment  that  the  carrier  is  held  abso- 


LIABILITIES  OF  THE  CARRIER  21 

lutely  liable  for  all  losses  contemporaneous  with  it, 
although  in  no  wise  due  to  it.  The  carrier  is  in  such 
cases  unhesitatingly  held  liable,  even  when  the  loss 
plainly  is  due  to  act  of  God.  In  the  leading  case  a 
boat  which  was  off  its  track  was  destroyed  by  a 
hurricane;  and  yet  the  carrier  was  held  liable.  So, 
if  goods  are  misrouted,  and  while  off  the  route  are 
destroyed  by  a  fire  originating  in  spontaneous  com- 
bustion, the  carrier  would  be  liable.  When  once  the 
deviation  is  over,  the  carriers'  responsibility  becomes 
again  what  it  ordinarily  would  be  and  the  goods 
cannot  be  refused  when  they  arrive. 

WHEN  CARRIAGE  BEGINS 

The  carrier  is  not  as  to  all  the  time  of  his  holding 
of  the  goods  liable  as  an  insurer;  he  is  only  thus 
liable  as  a  common  carrier  during  the  period  of  his 
essential  obligation.  Before  his  duties  as  a  carrier 
have  begun  he  holds  simply  as  a  warehouseman,  and 
after  his  transportation  may  fairly  be  said  to  be  com- 
pleted he  holds  the  goods  again  simply  for  storage. 
While  he  is  carrying  he  is  liable  as  an  insurer,  sub- 
ject to  the  exceptions  before  noted;  but  while  he  is 
storing  he  is  liable  only  for  due  care  of  the  goods  in 
his  charge.  It  is  during  the  carriage  period,  there- 
fore, that  the  extraordinary  liability  of  the  common 
carrier  attaches;  both  before  and  after  the  liability 
is  the  normal  one  of  bailees  generally.  What  the 
transit  is  which  the  carrier  undertakes  is  therefore 
the  important  question  of  fact.  The  shipmaster  takes 
simply  from  dock  to  dock;  the  expressman,  on  the 
other  hand,  transports  from  house  to  house. 


22  MODERN  AMERICAN  LAW  LECTURE 

Where  the  carrier  is  given  goods  to  hold  until 
forwarding  orders  are  given,  he  holds  the  goods  at 
first  simply  as  a  warehouseman.  And  so  it  is  when 
the  carrier  is  to  hold  the  goods  until  some  fixed  time, 
as  the  opening  of  navigation.  On  the  other  hand, 
if  it  is  left  to  the  carrier  to  forward  the  goods  at  his 
convenience,  he  takes  the  goods  at  the  outset  as  a 
carrier,  although  he  does  not  put  them  in  course  of 
transit  until  later.  And  where  the  carrier  is  to 
blame  for  not  forwarding  the  goods  at  the  time  as 
directed,  he  of  course  becomes  absolutely  liable  for 
their  loss.  If  anything  remains  to  be  done  to  the 
goods  by  the  shipper  before  their  transportation  is 
to  be  begun,  the  carrier  holds  as  warehouseman  until 
that  time.  But  where  the  carrier  has  both  possession 
and  the  right  to  transport,  he  is  as  fully  liable  as 
though  the  goods  were  under  way. 

WHERE  CARRIAGE  ENDS 

There  is  irreconcilable  conflict  among  the  authori- 
ties upon  the  question  as  to  when  the  special  liability 
of  the  common  carrier  comes  to  its  end.  Upon  ab- 
stract principles  it  should  end  wrhen  the  transporta- 
tion undertaken  may  properly  be  said  to  have  been 
completed;  but  there  are  many  theories  in  the  cases 
as  to  the  termination  of  the  special  liability,  viz.: 
(1)  In  some  jurisidictions  the  end  of  the  movement 
of  the  goods  is  the  end  of  their  carriage.  (2)  In  other 
jurisdictions  the  liability  of  a  common  carrier  con- 
tinues until  a  reasonable  time  for  the  consignee  to 
get  the  goods  has  expired.  (3)  In  still  other  juris- 
dictions the  common  carrier  remains  liable  as  such 


LIABILITIES  OF  THE  CARRIER  23 

until  he  has  given  reasonable  notice.  (4)  Some  car- 
riers must  offer  personal  delivery  before  they  are 
exonerated.  In  all  jurisdictions,  however,  the  extra- 
ordinary liability  as  a  common  carrier  may  at  length 
come  to  an  end,  with  the  carrier  still  in  possession  of 
the  goods.  And  during  this  period  of  custody  await- 
ing delivery  the  carrier's  liability  becomes  that  of  a 
warehouseman,  viz. :  a  liability  for  failure  to  use  due 
care  to  protect  and  guard  the  goods  according  to 
their  nature. 

Where  the  carriage  involves  the  services  of  several 
carriers,  the  transit  is  considered  to  proceed  without 
interruption.  Of  course,  if  the  arrangement  is  found 
to  be  that  the  original  carrier  undertakes  a  through 
transit,  there  will  be  one  transit,  and  the  initial  car- 
rier will  be  responsible  for  the  goods  during  the  en- 
tire journey.  The  policy  of  the  law  is  that  some  one 
should  be  liable  as  a  common  carrier  from  the  begin- 
ning of  the  carriage  to  its  end.  And  even  in  the  more 
usual  case  of  connecting  carriage  a  prior  carrier  is 
not  relieved  of  responsibility,  until  the  subsequent 
carrier  has  received  the  goods.  By  the  accepted  law 
this  liability  of  a  first  carrier  continues  until  the  first 
carrier  has  deposited  the  goods  where  the  second 
carrier  receives  them,  and  given  notice,  as  would 
generally  be  requisite,  to  the  succeeding  carrier  that 
the  goods  were  there  awaiting  his  transportation, 
together  with  the  necessary  instructions  for  forward- 
ing the  goods.  If,  however,  the  second  carrier  finally 
refuses  the  goods,  the  first  carrier  has  performed  its 
duty  as  such.  But  there  rests  upon  it  in  this  case, 
as  in  many  other  cases  of  unexpected  interruption, 


24  MODERN  AMERICAN  LAW  LECTURE 

the  duty  to  store  the  goods  refused  and  notify  the 
consignor  of  the  situation. 

TERMINATION  OF  THE  BAILMENT 

It  would  seem  that  completion  of  performance, 
according  to  the  instruction  given  by  the  person  en- 
titled to  give  directions,  would  always  be  a  termina- 
tion of  the  carrier's  responsibility  in  the  absence  of 
complicating  circumstances.  Thus  delivery  to  the 
consignee  would  normally  be  a  discharge  from  all 
further  liability;  and  so  would  delivery  to  the  con- 
signor be,  if  title  has  not  passed  to  the  consignee. 
Where  a  bill  of  lading  is  issued,  delivery  according 
to  its  tenor  will  usually  be  considered  performance 
of  the  undertaking;  and  therefore  it  is  often  said  that 
the  carrier  may  require  the  production  of  the  bill  of 
lading  before  he  can  be  asked  to  deliver  the  goods. 
A  distinction  should  be  taken,  however,  which  is  not 
invariably  observed.  A  carrier  who  has  issued  an 
"order"  bill  of  lading  delivers  the  goods  to  anyone 
else  than  the  holder  of  the  bill  of  lading  at  his  peril, 
as  the  commercial  community  deals  with  such  bills 
as  representing  the  goods  themselves.  But  it  is 
usually  held  otherwise  as  to  the  "straight"  bill  of 
lading,  for  it  would  be  hampering  business  too  much 
to  hold  the  carrier  liable  for  delivering  to  the  ad- 
dressee without  his  producing  the  bill. 

It  is  a  good  defense  to  an  action  upon  the  contract 
for  transportation  against  a  common  carrier  by  a 
party  to  the  consignment,  if  the  carrier  shows  that 
it  delivered  the  goods  to  the  true  owner.  Indeed,  it 
is  liable  for  conversion  if  it  refuses  to  surrender  the 


LIABILITIES  OF  THE  CARRIER  25 

goods  to  the  true  owner  upon  demand.  It  may  be 
noted  that  if  the  owner  demands  his  goods  at  any 
place,  he  is  entitled  to  have  them;  but  he  must  pay 
the  freight  for  the  whole  carriage  originally  ar- 
ranged. The  consignee  may,  however,  accept  deliv- 
ery in  a  different  place  at  an  earlier  time  from  what 
is  usual;  and  by  such  acceptance  a  delivery  may  be 
made  good  when  tender  merely  would  have  been  bad. 
And  the  existence  of  a  customary  mode  of  delivery 
may  be  sufficient  to  justify  the  carrier  in  delivering 
in  a  certain  manner  which  would  otherwise  be  un- 
usual. 

RESPONSIBILITY  FOR  MISDELIVERY 

Such  is  the  responsibility  of  bailees,  that  delivery 
by  the  carrier  to  a  person  other  than  the  person 
designated  is  a  misdelivery  for  which  the  carrier  is 
absolutely  liable  as  for  a  conversion.  Misdelivery, 
indeed,  is  a  deviation  from  the  undertaking;  and  the 
carrier  is  therefore  held  liable  for  loss  resulting 
therefrom,  even  if  there  is  no  negligence  that  can  be 
imputed  to  him.  But  if  the  negligence  of  the  shipper 
is  a  factor  in  the  mistake,  then  the  carrier  is  excused, 
as  where  the  address  of  the  consignee  is  so  wrong  as 
naturally  to  mislead  the  carrier.  Furthermore,  de- 
livery to  an  unauthorized  person  is  misdelivery, 
while  delivery  to  an  agent  with  apparent  authority 
to  receive  is  good.  It  is,  for  example,  not  good  de- 
livery to  hand  the  goods  over  to  a  wife  or  an  associ- 
ate. But  it  is  good  delivery  to  hand  a  package  ad- 
dressed to  an  officer  to  the  clerk  in  his  office,  or  in 
care  of  the  conductor  of  a  train  to  whomsoever  may 
be  the  conductor  at  the  time. 


26  MODERN  AMERICAN  LAW  LECTURE 

There  is  a  class  of  cases,  as  to  which  it  is  difficult 
to  come  to  a  conclusion,  where  delivery  of  goods  is 
made  to  an  imposter.  In  these  cases  the  usual  fact 
is  that  the  imposter  has  ordered  goods  by  mail, 
using  the  name  of  a  reputable  firm  with  a  commercial 
rating.  The  goods  are  forwarded  in  response  to  this 
order,  and  the  imposter  who  is  there  ready  to  receive 
them  gets  them  from  the  carrier.  There  are  courts 
which  consider  this  to  be  a  misdelivery  and  hold  the 
carrier  liable  for  the  consequent  loss  of  the  goods. 
But  by  what  seems  to  be  the  better  opinion,  it  is  held 
that  the  carrier  is  in  reality  delivering  in  response 
to  the  instructions  of  the  shipper  whatever  be  the 
fraud  which  induced  the  consignment.  It  should  be 
said  that  in  these  cases  as  in  others,  if  there  is  a 
suspicion  plainly  pointing  to  fraud,  the  carrier  would 
be  negligent  in  making  delivery.  As  in  all  other 
cases  of  bailment  the  carrier  owes  the  parties  in  in- 
terest the  utmost  fidelity  in  all  circumstances. 

SPECIAL  IJMITATION  OF  LEGAL  LIABILITY 

The  carrier  is  allowed  by  contract  with  the  ship- 
per to  exempt  himself  from  his  common  law  liability 
as  an  insurer,  provided  that  mutual  assent  and  con- 
sideration sufficiently  appear  in  the  transaction  by 
the  acceptance  of  the  bill  of  lading  and  the  quoting 
of  a  lower  rate.  But  even  although  the  contract  is 
sufficient  in  these  essentials,  it  is  held  against  public 
policy  if  the  carrier  attempts  to  press  the  shipper 
further.  It  may  well  be  that  the  abnormal  liability 
of  an  insurer  which  the  law  imposes  upon  the  carrier 
may  be  cut  down  by  special  arrangement.  But  it 


LIABILITIES  OF  THE  CARRIER  27 

would  seem  to  be  against  public  policy  for  a  public 
servant  to  stipulate  that  he  shall  not  be  liable  for  his 
negligence  in  the  performance  of  his  undertaking. 
And  as  a  matter  of  fact  this  distinction  will  be  found 
to  be  supported  by  an  almost  overwhelming  weight 
of  authority. 

The  most  important  point  in  relation  to  the  limita- 
tion of  liability  is  that  the  exceptional  liability,  such 
as  that  making  the  common  carrier  of  goods  liable 
as  an  insurer,  may  be  done  away  with  by  a  special 
contract  properly  made.  By  the  overwhelming 
weight  of  authority,  it  is  conceded  that  a  contract 
which  goes  no  further  than  this  is  not  against  public 
policy.  As  the  carrier  is  still  held  liable  for  any  neg- 
ligence that  may  be  found  in  him,  it  is  enough.  A 
contract  which  only  relieves  from  liability  a  carrier 
who  has  exercised  the  utmost  human  foresight  cer- 
tainly cannot  be  said  really  to  tend  in  any  way  to 
impair  that  efficiency  which  is  so  requisite  in  a  pub- 
lic service.  If  there  ever  was  any  reason  for  the 
earlier  law,  making  the  carrier  liable  when  he  was 
not  blameworthy,  the  necessities  for  any  such  law 
ceased  before  it  had  really  become  law7.  According  to 
modern  notions  of  responsibility,  there  is  almost 
never  reason  enough  to  make  a  party  to  whom  no 
fault  can  be  attributed  liable  for  a  loss. 

On  the  other  hand,  by  the  great  weight  of  authority 
a  contract  that  the  shipper  will  not  hold  the  carrier 
liable  for  loss  or  damage  caused  by  its  negligence  or 
that  of  its  servants  is  held  against  policy.  The  real 
reason  for  this  is  that  if  such  contracts  were  per- 
mitted there  would  be  an  inevitable  deterioration  in 


28  MODERN  AMERICAN  LAW  LECTURE 

the  public  service.  Indeed,  that  the  invalidity  of 
such  exemptions  is  due  to  the  character  of  the  service 
is  shown  by  the  fact  that  when  the  matter  under  con- 
tract does  not  directly  pertain  to  the  public  service 
as  such,  the  contract  is  held  valid.  As  the  United 
States  Supreme  Court  said  in  the  leading  case,  the 
proposition  to  allow  a  public  carrier  to  abandon  al- 
together his  obligations  to  the  public,  and  to  stipulate 
for  exemptions  that  are  unreasonable  and  improper, 
amounting  to  an  abdication  of  the  essential  duties 
of  his  employment,  would  never  have  been  enter- 
tained by  the  sages  of  the  law. 

Stipulations  limiting  the  recovery  to  an  agreed 
amount  in  case  of  loss  by  negligence  do  not  neces- 
sarily tend  to  defeat  public  service,  and  therefore  are 
not  held  against  public  policy  by  the  great  majority 
of  cases.  The  amount  must  not  be  nominal,  but  it 
need  not  necessarily  be  actual.  If  a  sufficient  sum 
to  secure  due  care  is  stated,  that  is  enough  to  avoid 
the  condemnation  of  the  law.  There  are  no  consid- 
erations of  a  sound  public  policy  which  require  that 
such  contracts  should  be  held  invalid,  or  that  a  per- 
son, who  in  such  contract  fixes  a  value  upon  his 
goods  which  he  intrusts  to  the  carrier,  should  not  be 
bound  by  that  valuation.  And  such  limitation  of  lia- 
bility to  a  set  amount  has  during  the  past  few  years 
repeatedly  been  held  valid  by  the  Supreme  Court  of 
the  United  States,  even  when  as  in  such  special  legis- 
lation as  the  Carmack  Amendment,  it  is  provided 
that  the  carrier  shall  not  stipulate  against  liability 
for  loss. 




GAYLAMOUNT  *) 
PAMPHLET  BINDER 
Syracuse.  N.Y. 
Stockton,  Calif. 


